Of course, I have been following the newspaper reports of outrage by members of the Palm Island indigenous community at the decision of the Queensland Director of Public Prosecutions not to prosecute Chris Hurley, a policeman involved in the death of Mulrunji, an indigenous man living on Palm Island. The decision will now be reviewed by former Chief Justice of the District Court, Pat Shanahan and Peter Davis, SC.
I don’t like to come to knee-jerk conclusions on matters like this. I like to look at all the information available and make up my mind. Consequently, this post will be reasonably in-depth, as I don’t think any of the news reports I have read went into enough detail.
1. Findings of the Coroner’s report
The Coroner’s report made the following findings:
- Mulrunji (also known as Cameron Doomadgee) was a 36 year old man who had never previously been in trouble with the police.
- Senior Sergeant Chris Hurley was in charge of the Palm Island police station. Hurley was called out to assist three sisters. The sisters had been assaulted by Roy Bramwell, the de facto partner of one of the women, Gladys Nugent. Hurley took Gladys Nugent to pick up her diabetes medication at a house in Dee Street. Outside the house in Dee Street was a young man called Patrick Bramwell, who was drunk and swearing at the police. His grandmother complained to Hurley about his behaviour, so Hurley arrested him and put him in the police van.
- Meanwhile, Lloyd Bengaroo, the Police Liaison Officer, was in the van when Mulrunji walked past. Mulrunji and Bengaroo knew one another. Mulrunji asked Bengaroo why he was helping to lock up his own people. He was apparently drunk. Bengaroo told Mulrunji he had better keep on moving or else he’d be arrested. Mulrunji walked off. When Hurley got back into the car, he asked Bengaroo what Mulrunji had said, and Bengaroo related the exchange to him. Hurley then said he’d better arrest Mulrunji. They drove after Mulrunji, who turned and swore at them. Hurley arrested Mulrunji and put him in the back of the police van with Patrick Bramwell.
- The police van arrived at the police station. Meanwhile, Seargeant Leafe had arrived at the police station with Roy Bramwell (the man who had assaulted his de facto partner and her sisters). Roy Bramwell was seated in the station awaiting questioning.
- There is conflicting evidence from the point where Hurley went to get Mulrunji out of the van. Mulrunji was protesting that he should not have been arrested, and was uncooperative when Hurley tried to shepherd him into the police station. Mulrunji swung a punch at Hurley, and hit him in the jaw. Some witnesses said that they saw Hurley hit Mulrunji back with a jab to the ribs, but Hurley denied this.
- Hurley was attempting to drag or grapple Mulrunji into the police station, when they both fell through the back door of the police station. In his initial statements, Hurley said that he did not fall on top of Mulrunji, but to the left of him, beside him. However, at the Inquest, Hurley gave evidence that he fell on top of Mulrunji.
- Roy Bramwell was sitting waiting to be interviewed. His evidence was that he saw Hurley and Mulrunji fall. Mulrunji was lying on the ground and his feet were protruding from behind a filing cabinet. He saw Hurley get up. His evidence was that he saw Hurley’s elbow rise and fall threee times above the filing cabinet in a punching action. He could not see the rest of Mulrunji’s body, so he thought that Mulrunji could have been punched in the head. He also alleged that Hurley said “you want more, Mr Doomadgee, you want more?” Another witness, Constable Steadman, said that he heard Hurley say something in an abusive tone to Mulrunji after they fell through the door. However, he did not see what happened inside the station, as he was waiting outside for things to “settle down”.
- Hurley gave evidence which directly conflicted with Roy Bramwell’s evidence. He said that he was trying to pick up Mulrunji by grabbing him by his shirt, and he had to try to grab him three times because Mulrunji’s shirt kept ripping in his hands. His evidence was that the movement of his elbow was as a result of his efforts to hoist up Mulrunji. The CCTV footage showed that Mulrunji’s shirt was indeed ripped. Hurley denied saying anything abusive to Mulrunji and denied that he punched Mulrunji.
- Mulrunji was dragged into the cell and left there. Patrick Bramwell was then put into the cell with him. According to the CCTV footage, Mulrunji was apparently in great distress and writhing with pain. He was calling for help. No one came to help him, but Patrick Bramwell attempted to comfort him.
- An hour later, when Leafe went to check on Mulrunji and Patrick Bramwell, he found that Mulrunji was unnaturally cold and not breathing. Hurley confirmed this. The police called an ambulance, who pronounced Mulrunji dead.
- An autopsy disclosed that Mulrunji had died as a result of intra-abdominal haemorrage. Specifically, Mulrunji’s liver had been almost totally cloven in two and the hepatic portal portal vein had been ruptured so that there was a hole measuring 1.5 x 0.7cm along it. Four of Mulrunji’s ribs (from the 6th rib to the 9th rib) were fractured.
- The doctors who completed the two autopsies on Mulrunji concluded that the injury to the liver was extremely unlikely to have been caused merely by a fall onto flat ground. The injury required significant compressive force. However, the doctors concluded that such an injury may have been caused by Hurley falling on top of Mulrunji with hard force, jabbing him in the abdomen with a knee or an elbow.
- The initial investigation by the police suffered from a perceived bias. Hurley picked up the two investigating officers, one of whom was a friend, and the officers stayed at his house and ate dinner with him. This was not appropriate. However, the later investigation by the Crime and Misconduct Committee was entirely appropriate.
The Coroner found that Hurley lost his temper after Mulrunji punched him and after they fell to the floor. She accepted Hurley’s initial statements that he did not fall on top of Mulrunji, but to the left of him. She also accepted Roy Bramwell’s evidence that Hurley appeared to have punched Mulrunji after they both fell to the floor. She found that Hurley punched Mulrunji and caused the damage to his liver. Therefore, she concluded that Mulrunji died as a result of the injuries caused by Hurley.
The standard of proof applied by the Coroner is, as she acknowledges, a civil standard of proof, that is “on the balance of probabilities”. However, although it is “on the balance of probabilities”, it is a higher standard (called the Briginshaw standard) than the usual civil standard because of the seriousness of the allegations. The Coroner is empowered to refer the matter to the Director of Public Prosecutions pursuant to s 48 of the Coroners Act 2003 (Qld), which she did in this case.
2. Discretion of the Director of Public Prosecutions
The Director of Public Prosecutions is empowered to prepare, institute and conduct criminal proceedings in Queensland pursuant to s 10 of the Director of Public Prosecutions Act 1984 (Qld).
The Director of Public Prosecutions in Queensland has published a Policy Statement, which says the following about the decision to prosecute for an offence:
“The criteria which are to be applied in deciding whether to prosecute fall into two categories. First, is the evidence sufficient to justify proceedings? Second, does the public interest require a prosecution? The prosecutor must be satisfied as to the first question before moving on to the second.”
In determining whether there is enough evidence, the Policy Statement says that “the existence of a bare prima facie case is not enough. A prima facie case is necessary; however, a prosecution should not proceed if there is no reasonable prospect of securing a conviction before a hypothetical reasonable jury in jury trials.”
Of course, the Director of Public Prosecutions must consider that an offence is likely to be able to be proven beyond reasonable doubt (the criminal standard of proof), which is a higher standard than the civil standard. The Policy Statement lists a variety of factors to be taken into account, including admissability of evidence and whether there is any conflict between eyewitness accounts. The Director of Public Prosecutions must then move on to consider the public interest.
It should also be noted that the purpose of a Coroner’s report is quite different to a prosecution. A Coroner’s report is a fact-finding mission which is not subject to the laws of evidence, where as a prosecution is intended to apportion blame, and is thus subject to strict laws of evidence. Hurley’s evidence given at the Inquest could not be used against him in a criminal trial because of the privilege against self-incrimination: see also s 39, Coroners Act 2003 (Qld). Presumably Hurley’s various statements to police investigators would be inadmissible at trial because of the operation of the privilege against self-incrimination.
In her statement to the media, the Queensland Director of Public Prosecutions found that Mulrunji died as a result of a “complicated fall” and was a “terrible, terrible accident”. The press release regarding the finding is no longer available on the Internet.
3. Analysis of the decision of the Director of Public Prosecutions
Was the decision of the DPP not to prosecute a reasonable one? After reading the Coroner’s report in detail, I felt very strongly on a moral level that the decision of the DPP was unfair. Mulrunji was a man with a previously unblemished record who died because he offered a bit of cheek to a policeman. I note that the arrest of Mulrunji in those circumstances was exactly the kind of thing which the Report on Aboriginal Deaths In Custody said should be strongly discouraged. It was recommended by the Report that instead of arresting indigenous people for public drunkenness and like offences, some other kind of less punitive measure should be put in place to prevent precisely this kind of incident occurring.
From the Coroner’s report, it seems that there are two conflicting accounts as to how the injury of Mulrunji came about. On the one hand, Hurley says that it must have arisen from the fall through the door of the police station, and denies having punched or abused Mulrunji. His evidence is that he must have fallen on Mulrunji, despite the fact that he gave conflicting statements prior to the Inquest indicating that he did not fall on Mulrunji. On the other hand, Roy Bramwell says that after Hurley and Mulrunji fell through the door, Hurley got up and Bramwell witnessed a motion which looked like Hurley was punching Mulrunji. It is essentially a case where Hurley’s word is pitted against Roy Bramwell’s word.
However, at trial, Hurley would be entitled to claim the privilege against self-incrimination. As stated above, the evidence given at the Inquest could not be used against him at all. I am also presuming the statements made to various police investigations could not be used against him because of the privilege against self-incrimination. Thus the inconsistent evidence given by Hurley about the way in which Hurley and Mulrunji fell would not be admissible. Without this evidence, the case against Hurley looks a lot less strong. The prosecution would have to prove beyond reasonable doubt that Mulrunji’s death occurred as a result of punches administered by Hurley, but could not use Hurley’s prior inconsistent evidence that he fell beside Mulrunji rather than on top of him. Thus, they would have difficulty proving that the injuries could not have been caused by the fall. They would only have the account of Roy Bramwell to rely upon, and Bramwell did not actually see Hurley hit Mulrunji. They would have to ask the jury to draw an inference that Mulrunji’s injuries could not have been caused by a fall, and must have been caused by punches.
I must concede that I do not know the other evidence to which the DPP had access. Perhaps she had evidence which discredited the evidence given by Roy Bramwell? Perhaps she felt that Roy Bramwell’s evidence lacked credibility because he was in the police station for violence against his de facto wife and her sisters? Perhaps she had an account by an eyewitness who did not give evidence to the Coroner? The Coroner concludes that the evidence given by Bengaroo was unsatisfactory and lacking in detail, and that he probably saw more than he let on. I do not know. I am always wary of second guessing decisions where I have not been in the position of seeing all the evidence. As I have said in another post, there is a big difference between sitting on a jury and deciding a case based on detailed evidence and submissions, and reading a brief sensationalised article about a case in the paper.
Given what I have said above, I can understand how the DPP came to the decision that there was not sufficient evidence to prove beyond reasonable doubt that Hurley killed Mulrunji by a punch to the abdomen. The DPP must have considered that there was a prima facie case, but there was not a reasonable prospect of securing a conviction if the matter went to trial.
Nevertheless, I still think that I would have made a different decision based on the evidence I have read. I must acknowledge (as I have acknowledged before) that I am not a criminal lawyer, even less an experienced criminal lawyer like the DPP. But I would still think that the evidence of Roy Bramwell along with the evidence of the autopsy was strong enough to mean that Hurley should at least stand trial, and that this could be used as circumstantial evidence to prove that he caused Mulrunji’s death. I would also take into account the strong public interest in seeing that such alleged offences are prosecuted, and the necessity that the justice system not be seen to favour police officers and to disadvantage indigenous people.
It will be interesting to see what the conclusion of the review is.